Legal Implications of Study Results Showing Continued Failure
to Disclose HIV Status to Sexual Partners

By Elaine A. Lisko, Health Law & Policy Institute

According to a recently released study conducted at two New England hospitals, four out of every ten persons who are HIV+ do not advise their sexual partners about their HIV status. Additionally, almost two-thirds of those did not always use a condom. See Sex Partners Often Silent About H.I.V., N.Y. Times, February 9, 1998, at A10.

This reported high-risk behavior has enormous legal as well as public health implications. Efforts to reduce the spread of HIV infection now include the imposition of criminal and civil penalties on individuals who intentionally or recklessly expose others to the virus without first disclosing their status.

Over 20 states have enacted laws that prohibit or outlaw the knowing transmission of or exposure of another to HIV. A number of these states, including Arkansas, Georgia, Idaho, Illinois, Michigan, Missouri, Oklahoma, South Carolina and Tennessee, make it a felony. Texas previously criminalized intentional HIV exposure but deleted that provision from its penal code effective September 1, 1994.

Interestingly, Massachusetts and Rhode Island, where the study was conducted, come out differently on the issue. Massachusetts does not have a statute outlawing HIV exposure, whereas Rhode Island does. The penalties imposed in Rhode Island are not very severe, however. A person found in violation of the statute is to be fined no more than $100 or imprisoned for not more than 3 months.

Disclosure serves multiple purposes. Many HIV-specific statutes recognize the alleged victimís informed consent as an affirmative defense to a criminal charge of HIV transmission or exposure. As a result, disclosure of oneís HIV status before engaging in sexual relations not only demonstrates responsible behavior but also may reduce the possibility of criminal charges and sanctions.

Among the most commonly filed civil causes of action for HIV transmission or exposure are negligence, battery, fraud, misrepresentation and intentional infliction of emotional distress. As seen in the suit brought by Marc Christian against actor Rock Hudson, a finding of willful nondisclosure of oneís HIV status may result in a multi-million dollar judgment. The jury originally awarded Mr. Christian $24 million. While the judge subsequently reduced this amount to $5.5 million, it was still substantial. Nevertheless, criminal prosecution may present a greater threat than civil prosecution at least among those studied at the New England hospitals because the majority of individuals studied had low incomes and were high school dropouts.